Monday, December 09, 2013

Pointed question by senior legal expert: Would Modi want armed forces special powers Act dropped?

By Our Representative
Will Gujarat chief minister Narendra Modi seek to drop the current provisions of the Armed Forces Special Powers Act – under which Central forces are stationed in several states like Manipur, Assam, Jammu & Kashmir etc. for maintaining public order – in case he comes to power in Delhi? Senior Gujarat High Court advocate Mukul Sinha has obliquely suggested that this should happen logically if one agrees with the legal objections Modi has raised to the prevention of the communal violence Bill, which is proposed to be placed in the upcoming winter session of Parliament.
Wondering if Modi would like to "repeal the Armed Forces Special Powers Act (AFSPA) on the ground that this law wholly violates the federal powers of these three states”, Sinha in a recent in-depth analysis (click HERE) on Modi’s opposition to the Bill has said, the revised version of the Bill says that in case the local district magistrate declares an area “disturbed and seeks the assistance of Central forces, Central Government can send armed forces to that area for maintaining public order.”
Even as saying that it is “ridiculous to expect a district magistrate to go against the state government and discharge his duties”, Sinha has accused Modi of fueling a “hypocritical debate”, Sinha says the CM has attacked the “toothless provision” to suggest that it would destroy the federal structure of the constitution. Sinha says, “Modi is shouting on top his voice that our Constitution does not permit the Centre to send forces to any state or make any law in this regard, thus questioning the legal basis of the communal violence bill”.
In fact, Sinha adds, Modi “is instigating several other state governments to oppose the bill on the ground that the law would curb the autonomous power of the state, thus dubbing it anti-federal.” He insists, “The entry no 2A of List 1 of Union list gives exclusive authority to the parliament to legislate for providing for deployment of any armed force of the Union in any state in aid of the civil power.” He adds, “Under this entry AFSPA was enacted. Under section (3) of AFSPA, if the governor of a state is of the opinion that it is necessary to use the armed forces in aid of the civil power, he or she could declare the whole or any part of such state to be a disturbed area.”
Pointing out that “under section (4), the armed forces could assume power to help the civil forces maintain public order”, Sinha insists, “Thus Modi’s claim that Centre cannot legislate or send central forces for maintaining public order in a state has no legal basis at all.” 
While not supporting the idea of Central forces directly intervening for maintaining public order in a state, as this would in fact depend on who really would be controlling the Centre, the senior advocate argues, “A far better idea would be create an independent statutory authority which should be empowered to monitor the communal situation in any part of the country and direct immediate deployment of central forces supervised by special officers under it. If the consent of the states are required to enact such a law, let consent be taken instead of rushing a toothless Bill.”
Modi in his letter to the Prime Minister opposing the Bill (for full text click HERE) had expressed “serious concerns” about its “constitutional validity, legality and efficacy.” He said, “To begin with, your government’s attempt to legislate on an issue of ‘law and order’ and ‘public order’ both of which are items in the List II (State List) of the Seventh Schedule betrays its contempt for the federal structure and the separation of powers.” 
He had added, “The Union List (List I) has 97 entries in it and you will agree that there are a whole range of issues in that list which are waiting for legislation. However, rather than addressing issues which are in its domain, the Government of India seems to be under some compulsion to encroach upon the issues in the State List. Is it because the implementation has to be done by the State Governments?”
Sinha observes, “A question that should perplex many of us, especially to those of us who understand the nuances of the Bill, is as to why Modi is opposing such a toothless piece of legislation which cannot prevent any organized violence against the minorities. Modi’s latest tweet asking all the state governments to oppose the bill despite the several amendments agreed to by UPA, exposes his fear that enactment of the law would act as a legal hurdle in the way of BJP’s future communal campaign of instigating communal violence as they did in Muzaffarnagar.”

In any case, Sinh adds, the Bill has “failed to address the fundamental reason as to how targeted violence against a particular community is carried out in a large scale. Without the active complicity of the government and its police force, no such violence can take place”, wondering, “Does the Bill give the Central government any statutory powers to reach armed forces to save the victims from the targeted violence aided and abetted by the State?”

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